Opinion
20-CV-6064 (LLS)
12-02-2020
AFAME W. ONWUKA, Plaintiff, v. CITIBANK, NA; CITIGROUP, INC.; VINCENT ZAPPOLA, Defendants.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action invoking the Court's federal question jurisdiction under 28 U.S.C. § 1331. By order dated November 19, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth in this order, the Court dismisses the action for lack of subject matter jurisdiction.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff, a resident of Staten Island, New York, brings this action against Citibank, NA, Citigroup, Inc., and Vincent Zappola, identified as a Vice President at Citibank. A day after filing his initial pleading (ECF No. 2), Plaintiff submitted an amended complaint to the Court (ECF No. 4).
Plaintiff invokes federal question jurisdiction in the amended complaint, asserting that the following federal laws are at issue: "Rule 50b, Reg D, Article 8 of UCC, 13th Amendment of US constitution[,] 17 CFR Section 240 12h-1, 18 U.S. Code Section 241[,] [and] 18 U.S. Code Section 242." (ECF No. 4, at 3.)
Plaintiff asserts that on July 3, 2020, "the defendant failed to make a deposit into [his] account causing default in other arranged transactions." (Id. at 4.) He claims he suffered "mental anguish, loss of life, missed opportunities etc.[,] social engineering[,] and victimization." (Id. at 5.)
Plaintiff describes the relief he seeks as follows:
Social engineering, trivialization, and because of this im seeking more than 100 billion dollars in punitive damages im seeking more because this has been a longstanding problem and its effecting my character as well as my business relations. My human rights are being effected as well and it has gotten to the point were I will have to seek asylum in another country because how on-going the harassment has been continuing. It is as if my basic human rights do not exist.(Id.)
DISCUSSION
The subject matter jurisdiction of the federal district courts is limited and is set forth generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available only when a "federal question" is presented or when plaintiff and defendant are citizens of different states and the amount in controversy exceeds the sum or value of $75,000. "'[I]t is common ground that in our federal system of limited jurisdiction any party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction.'" United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); see Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative . . . .").
A. Federal Question Jurisdiction
Federal question jurisdiction is available when a plaintiff's claims arise "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A case arises under federal law if the complaint "establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996).
Here, Plaintiff invokes the Court's federal question jurisdiction, but he fails to establish that his amended complaint involves a matter of federal constitutional or federal statutory law. He cites the Thirteenth Amendment to the Constitution, federal criminal conspiracy statutes, Article 8 of the Uniform Commercial Code (UCC), and what appear to be regulatory provisions, but he fails to allege how they are applicable to his claim that Defendants failed to deposit money into his bank account. The gist of Plaintiff's amended complaint is that Defendants breached their fiduciary duties by failing to deposit money into his account, but such claims generally arise under state law, not federal law. See Curiale v. Reissman, 798 F. Supp. 141, 145-46 (S.D.N.Y. 1992) (no private right of action against bank directors for breach of fiduciary duty under federal common law or federal banking law). As Plaintiff does not identify any cause of action arising under federal law, he fails to satisfy his burden of showing that the Court can exercise federal question jurisdiction over this action.
The Thirteenth Amendment provides that "[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XIII, § 1. Plaintiff does not allege any facts suggesting that he performed compulsory labor, which is generally the basis of a Thirteenth Amendment claim. See United States v. Kozminski, 487 U.S. 931, 943 (1988) (" In every case in which [it] has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction.").
18 U.S.C. §§ 241 and 242 are federal criminal conspiracy statutes, which cannot be the basis for a civil action because such statutes do not provide private causes of action. See Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private right of action from a "bare criminal statute"); Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) ("federal criminal statutes do not provide private causes of action").
Similarly, Article 8 of the Uniform Commercial Code (UCC), which concerns investment of securities, cannot be the basis of a federal civil action. The UCC is not a federal law but rather a set of laws governing commercial transactions in the United States that have been adopted separately by the states. See Kemp v. United States, 124 Fed. Cl. 387, 393 (2015); Moss v. Stanley, No. 8:20-CV-3194, 2020 WL 6111002, at *2 (D.S.C. October 16, 2020); Dillard v. BMW Financial Services NA, LLC, No. GJH-19-1191, 2020 WL 869223, at *2 (D. Md. February 20, 2020)
17 C.F.R. § 1240.12h-1 is a regulation exempting certain securities from registration under the Securities Exchange Act of 1934. And the Court is unaware what Plaintiff is referring to with his citations to "Rule 50b" and "Reg D." (See ECF No. 4, at 3.)
B. Diversity Jurisdiction
Although Plaintiff does not invoke the Court's diversity jurisdiction, the Court also considers whether he alleges facts sufficient to do so. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998) ("A case falls within the federal district court's 'original' diversity 'jurisdiction' only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State."). An individual is a citizen of the State where he is domiciled, which is defined as the place where a person "has his true fixed home . . . . and to which, whenever he is absent, he has the intention of returning." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). "A corporation is a citizen "of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1); see also Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010) (a corporation's principal place of business is its "nerve center," usually its main headquarters). In addition, the plaintiff must allege to a "reasonable probability" that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation and internal quotation marks omitted).
Plaintiff fails to meet his burden of showing that the Court has diversity jurisdiction over his claims. He alleges that he resides in Staten Island, New York, and indicates that Citibank and Zappola are located in New York and that Citigroup is incorporated in Delaware, with its principal place of business in New York. Based on the information Plaintiff provides, he fails to demonstrate that he and all the defendants are citizens of different states and that complete diversity exists.
C. Denial of Leave to Amend
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's amended complaint cannot be cured with another amendment, the Court declines to grant Plaintiff leave to submit a second amended complaint.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff's amended complaint, filed under 28 U.S.C. § 1915(a)(1), is dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). All other pending matters in this action are terminated. SO ORDERED. Dated: December 2, 2020
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.